CAN AND WILL REGIONAL ARCHITECTURE PRODUCE NORMS TO HELP RESOLVE DISPUTES AMONG MEMBER STATES?

Based on Remarks at the Asia Foundation’s Asia Perspectives Program on

“The Evolving Nature of Asia’s Regional Architecture: Views from ASEAN”, 8 November 2011, 9:00-11:00 a.m., Washington, D.C.

[The views expressed are the author's own and do not represent those of the sponsoring organization]

CAN AND WILL REGIONAL ARCHITECTURE PRODUCE NORMS TO HELP RESOLVE DISPUTES AMONG MEMBER STATES? 

Aileen S.P. Baviera

I assume ‘regional architecture’ here to mean the multiple multilateral cooperation arrangements, using the definition by Nick Bisley in 2007: “a reasonably coherent network of regional organizations, institutions, bilateral and multilateral arrangements, dialogue forums, and other relevant mechanisms that work collectively for regional prosperity, peace, and stability.” In east Asia and the Pacific, some of these are projects involving the building of a regional “community”, ideally one based on a shared identity and a “we-feeling”. ASEAN is clearly moving in that direction, and for ASEAN Plus 3 or APT, a similar aspiration had been expressed in the original vision document prepared by the East Asia Vision Group. Geographic contiguity, shared history and economic interdependence play a big role in infusing ASEAN and APT with a sense of a shared destiny.

Then there is a fledgling mechanism which has some potential to become an organization or institution also based on geographic contiguity, with an even stronger common history, shared destiny, mutual interdependence, and shared cultural elements than ASEAN. I refer to the 3 northeast Asian countries, however implausible it may seem at the moment given the existing disputes and disagreements between the various pairs of countries.

In contrast, other arrangements are more functionally-oriented and interest-based arrangements, such as the ASEAN Regional Forum (ARF) and APEC which are also more inclusive and even trans-regional. I believe also belonging in this category is the East Asia Summit (EAS), whether we speak of the original ASEAN + 6 or the new ASEAN + 8 formation. Because of the wider membership, larger geographic footprint, more diverse histories, cultures, and political systems, what binds these countries are calculations of gain and mutual advantage, and naturally they have expectations of more immediate or short-term benefits.

Together, looking at ASEAN, APT, EAS, ARF, APEC, the northeast Asian 3, what we have is not quite a coherent edifice yet but overlapping structures jutting out but joined at the hinge by the role ASEAN plays in bringing them together, as facilitator, convenor, catalyst, or driver if you will.

Can the emerging architecture produce norms to resolve disputes? As this is a YES or NO question, my first instinct is to say YES, it can, it will, and more importantly, it must. ASEAN experience shows this -- how it became possible for the original ASEAN members (coming together in 1967 in the wake of Konfrontasi and the Malaysia-Philippine dispute over Sabah) to have become a “non-war community” or a region where the likelihood of war between any pair of states was close to nil, after they had decided to form the association. This was based largely on a strong commitment to norms such as peaceful settlement of disputes, non-interference in internal affairs, and reliance on the ASEAN way of consensus-building and consultations. Then after a relatively short period of socialization by new members, ASEAN-10 has even become bolder with putting forward new norms - emphasis on the rule of law, social justice, good governance, human rights and fundamental freedoms, democratic and constitutional government, among them.

Whether these norms will likewise take root is still open-ended, and it is too soon to tell if we will succeed in community-building, developing a regional identity, a “we-feeling” for the ASEAN-10, but judging by the Charter, the 3 community blueprints, the new institutions that are being created such as the ASEAN Inter-governmental Commission on Human Rights (AICHR), the Commission on Women and Children, and the declaration on the protection and promotion of rights of migrant workers, then one might say that the community is intended to be built upon these norms.

This is going to be an uphill battle, a process with outcomes that are uncertain – and the key point is how to balance these new norms with respect for sovereignty, territorial integrity, and non-interference in internal affairs.  Interestingly the ASEAN governments, having introduced such new norms in their rhetoric, are now being challenged by civil society organizations, at least in those countries where many CSOs have chosen to engage, encouraged by the pledge by governments to make ASEAN a people-oriented community. One must not overstate the influence of civil society in ASEAN, as this is still in its incipient stage. But clearly, aside from external expectations on the ASEAN governments to live up to their new promises, there will now be pressures from below and within.

Does it mean that ASEAN cooperation is not then based on shared interests, if norms are so important? It was, and continues to be, based on shared interests; however, one may also observe that a gradual turn from pragmatism and instrumentalism to a more normative orientation has taken place over time. The affirmation of “One ASEAN, One Community” vision, Treaty of Amity and Cooperation (TACSEA), SEANWFZ Treaty, the mandate to promote “shaping and sharing of norms” under its political-security community pillar, are some other indications.

Is it indeed the architecture that provides the basis for norm agreement, or is it not the other way around – that norm agreement should precede and underpin how the architecture is defined? Outside of ASEAN, we have also seen that it is those who accept and are committed to shared norms that become the members, particularly if one looks at the way US was admitted to East Asia Summit only after it had acceded to TACSEA. If one does not accept the norms, it is excluded. Once countries become part of the architecture, they are expected to abide by and uphold the norms. Norm agreement provides the foundations of architecture building, then the emerging architecture becomes a platform for the continuous evolution and promotion of norms. In this light, norms and architectures are, to use a constructivist term, mutually constitutive.

Can norm-driven architectures help resolve disputes? Yes, but only if norms become translated into rules and binding codes of conduct. Norms and principles are not enough; when there is sufficient norm agreement, one needs guidelines, rules, mechanisms, to ensure they are complied with. Thus, ASEAN recognized the need to build dispute settlement mechanisms, to set up AICHR, keep the High Council, to enhance somewhat the role of the Secretary General, to ensure norm compliance. In the South China Sea disputes, we will need to move from the Declaration of Conduct (largely a political statement of norms and principles) to a more formal and binding Code of Conduct, establishing rules that must be anchored on international law, rejecting the role of brute force or coercion.

The ARF, and relatedly the Council for Security Cooperation in the Asia Pacific (CSCAP) and other Track Two and Track Three mechanisms, are also engaged in building norms – with the stress on common security and cooperative security. Multilateralism itself (particularly John Gerard Ruggie’s definition of its features as diffuse reciprocity, generalized principles of conduct, and indivisibility) inherently has a normative framework – focusing on consultative, inclusivist, peaceful approaches to conflict resolution - but these again require operational mechanisms to succeed.

Indeed, there will be many challenges to the role of norms in the regional architecture – the lack of domestic political support for said norms (such as for democracy in some ASEAN states), vested interests, narrow nationalism, inter-state power rivalry, path-dependent realism, historical legacies of mistrust, and so on. But norms do matter, most of all to the resolution of disputes, although in my view, they are not in and of themselves sufficient without establishing clear rules and strong institutions.